Accused WikiLeaker defense argues Obama must testify

Lead lawyer for accused WiliLeaks whistle-blower US Army PFC Bradley Manning, attorney David Coombs released the defense’s witness list for his pre-trial hearing, known as an “Article 32” hearing in military lingo, last week. On December 16th, PFC Manning may finally get his first day in court following his arrest in May 2010. The pre-trial phase is scheduled to begin at Fort Meade, just northeast of Washington DC, and last through December 22nd. The witness list represents an expansive range of 48 witnesses that offer significant insight into the brewing legal battle.

PFC Manning, a 23-year-old Army intelligence analyst, is accused of blowing the whistle on the “Collateral Murder” video of a US helicopter attack that killed a dozen unarmed Iraqis, the “Iraq War Logs”, the “Afghan Diaries”, the “Gitmo Files”, and a trove of embarrassing US State Department cables by providing these files to the WikiLeaks website. In short, he is being charged with telling us the truth.

The actual charges are “various offenses under Article 92 and Article 134” of the Uniform Code of Military Justice, noted Mr. Coombs in last week’s court filling. “The offenses deal with the incorporation, under Article 134, of the Espionage Statute 18 U.S.C 793(e),” along with property and computer fraud statutes. According to the Army, PFC Manning faces “confinement for life”, followed by a dishonorable discharge.

The most significant witnesses listed are President Barack Obama, Secretary of State Hillary Clinton, and former Secretary of Defense Robert Gates. Two health care professionals on staff at the Quantico Marine Brig–where PFC Manning was subjected to torturous conditions for nine months–are also noteworthy.

President Obama’s unlawful declarations and commitment to transparency questioned

The headline witness requested by the defense is President Barack Obama. While all witness names were redacted, the identity of witness #36 is not in question. The court document reads:

The defense requests the presence of — in order to discuss the issue of Unlawful Command Influence (UCI)… Under the Uniform Code of Military Justice (UCMJ), a superior officer in the chain of command is prohibited from saying or doing anything that could influence any decision by a subordinate in how to handle a military justice matter. As the — made improper comments on 21 April 2011, when he decided to comment on PFC Manning and his case. On that date, he responded to questions regarding PFC Manning’s alleged actions by concluding that “We’re a nation of laws. We don’t let individuals make their own decision about how the laws operate. He [PFC Manning] broke the law.” The comments by — are UCI. The defense intends to question — on the nature of his discussions with members of the military regarding this case and whether he has made any other statements that would either influence the prosecution of this case or PFC Manning’s right to a fair trial.

In addition to President Obama’s views of the release of Afghanistan related documents by WikiLeaks, the defense believes Obama will:

Testify about the problem of over-classification within the government. Specifically, that he supported and signed into law the Reducing Over-Classification Act on 7 October 2010. Additionally, he will testify that on his first full day in office, 21 January 2009, he issued two memoranda for the head of Executive Departments and Agencies that were related to transparency in government. The first memorandum focused on the administration of the Freedom of information Act (FOIA), and the second focused on transparency and open government. — will testify that the transparency memorandum he wrote committed the administration to “an unprecedented level of openness” and to the establishment of a “a system of transparency, public participation, and collaboration.”…

Another easily identifiable witness is Secretary of State Hillary Clinton, #38 in the court document. Secretary Clinton will “testify that although the leaks were embarrassing for the administration, that she concurs…that they did not represent significant consequences to foreign policy.”

Witness #37 appears to be former Secretary of Defense Robert Gates. The defense expects that he will:

Testify that the Afghanistan and Iraq SIGACT releases [by WikiLeaks] did not reveal any sensitive intelligence sources or methods. He will also testify that the Department of Defense could not point to anyone in Afghanistan or Iraq harmed due to the documents released by WikiLeaks… — will also testify that the initial public descriptions of the harm to foreign policy due to the publication of diplomatic cables were “fairly significantly overwrought.” He will also testify that although the disclosures were embarrassing and awkward, they did not represent significant consequences to foreign policy.

These requests represent an aggressive attempt by PFC Manning’s legal team to get at the heart of the issues at play in this continuing persecution: Government transparency or the lack there of, and the over-classification of documents for no legitimate security purposes.

Historic whistle-blower a hero despite challenges of adjusting to military life

Of the witnesses requested, about a dozen are expected to address their opinions that PFC Manning was a “marginal soldier” with “behavioral issues” related to military life. Examples include statements such as “PFC Manning…was not receptive to commands” and “PFC Manning wanted to be a good soldier, but naturally was not good at the basic soldier skills.” PFC Manning was seeking assistance from the Army’s “Combat Stress” mental health services and “appeared to be under a considerable amount of stress.” PFC Manning had been demoted for striking an officer.

These witnesses paint a picture of a young man who had difficulty adjusting to life in the Army. Witness #33, a soldier who served with PFC Manning in Iraq, notes “Others would make fun of PFC Manning’s size and the fact that they believed he was gay… The Army was not a good fit for him based upon where he was at in his life.”

A few witnesses would note that PFC Manning probably should have been separated from the Army, or at least given a less sensitive job, but was deployed to Iraq due to “manpower issues”.

Over the last week, many in the media have used these dozen or so witness descriptions to minimize PFC Manning’s agency in his alleged release of documents that have concretely contributed to democracy movements, government transparency, and a hastened withdrawal of US troops from Iraq. Instead, headlines such as “Defense team to highlight suspect’s fragile mental state,” have carried the day.

However, even among witnesses who can speak to PFC Manning’s shortcomings as a soldier, there are things to be learned. Witness #31, a fellow soldier will:

Testify that he believes that PFC Manning used to be a very happy and very hyper individual, but his [Army] leadership wore him down. He will state that PFC Manning was upset that no one cared about the mission… PFC Manning found a report that apparently upset him… Iraqis or possibly some Moroccans were being arrested at a printing press facility… He will testify that PFC Manning was very upset about the issue. He will testify that if there was a moment in which PFC Manning may have snapped, this would have been it. — will testify that everyone stonewalled PFC Manning on the issue as no one thought it was a big deal. He will testify that the translation [of the report] indicated that the individuals being arrested had printed documents that were questioning where the Iraqi government was embezzling public funds.

Another fellow soldier, witness #34, recommended that:

PFC Manning not deploy due to his emotional issues. She will testify that she believes that she was the first in the T-SCIF [intelligence office] to see the “Apache video” [released by WikiLeaks with the title “Collateral Murder”] which she found of her own accord… — will testify that over the next few days, several of the T-SCIF personnel debated about whether the video showed a camera or a rocket propelled Grenade (RPG) launder and whether the action of the Apache crew were appropriate under the circumstances. — will testify about her time as PFC Manning’s direct supervisor and her multiple observations… that indicated to her PFC Manning was struggling both emotionally and mentally.

Many of the millions of people worldwide who have viewed the “Collateral Murder” video since its release by WikiLeaks “struggled emotionally and mentally” with the graphic depiction of a dozen Iraqis being ripped apart, including two Reuters journalists, by an unseen US helicopter. The video includes a scene of US forces then killing the ambulance van driver who tried to aid survivors, in the process severely wounding his two small children. These scenes are traumatic. One of the soldiers who offered assistance to those children, Spc. Ethan McCord, has noted that those types of incidents are quite common. It simply isn’t accurate for members of the media to suggest that soldiers who experience normal responses to traumatic situations involving potential war crimes can only be suffering from a “fragile mental state.”

A comprehensive review of the witness list shows that most are expected to testify, not to PFC Manning’s behavioral issues, but to the merits of the case against him and the standard practices of the unit to which he was attached. Witnesses 1 through 9 are law enforcement agents connected to the prosecutions efforts, witnesses 20 through 23 will speak to unit level supervision, and witnesses 31 through 45 cover a wide range of background issues, including the impact of the wiki-leaked documents, and under what rationale they were classified in the first place. The latter group includes President Obama, Hillary Clinton, and Robert Gates.

Military court martials

After reading some of the recent press accounts regarding this witness list, some have mistakenly concluded that the defense’s legal strategy amounts to, “please have pity on him, he’s crazy.” Yet why would Mr. Coombs include these witnesses?

A military court martial is similar to a civilian trial, but there some significant differences. A court martial is conducted in two separate phases—a guilt phase and a punishment phase. There is no delay between the two phases. A defendant could be found guilty in the first phase, and yet be sentenced to no punishment at the conclusion of second phase—albeit very unlikely.

During the guilt phase, military judges are often very narrow regarding what defense evidence they will allow the jury of career military officers and senior enlisted members to hear. For example, arguments delving into the legality of a specific war or related “Nuremberg Principle”-type defenses are simply dismissed and shut down as “outside the scope of this hearing”. A military judge will always want to pose a simple “did he or did he not do it?” question the jury.

For this reason, it is unlikely that the mental health, behavioral problems, or sub-standard soldier issues attributed to PFC Manning will have much bearing on the guilt phase of the court martial.

On the other hand, due to the prosecution’s overreach in charging PFC Manning with an Espionage Statute and “aiding the enemy”, the defense may have uncommon opportunities to bring issues related to motive and intent into play in the guilt phase. These issues of motive and intent are at the core of why millions of people around the world sympathize with PFC Manning, but we’ll have to wait to see how they play out in a Fort Meade military courtroom in the spring or summer.

Mitigation of punishment

Defense efforts to call witnesses and present evidence can be highly restricted by a military judge during the guilt phase, but just about anything can be presented in mitigation during the punishment phase (assuming of course that the defendant is not acquitted of all charges).

As there is no delay between the two phases, the defense has to be ready to mount a vigorous case for mitigation from the beginning. If the witnesses are not already present, then it’s too late. This is especially true for non-cooperative witnesses that need to be compelled to appear by the court, including nearly all of the witnesses requested by the defense for the Article 32. If the defense wants them at court martial, that fight needs to start now–and that is what this list represents. The prosecution has already come out opposed to all witnesses requested, with the exception of those witnesses that they also intend to question. There is still plenty of time prior to court martial to add friendly witnesses.

Unless the military is compelled to resolve the legal proceedings against PFC Manning non-judicially, or PFC Manning is acquitted of all charges, then there will be the need for mitigation during this second phase of court martial. That mitigation may include any number of arguments, including: PFC Manning should have been released from military service for failure to adapt to military life, he should not have been deployed to Iraq, he should not have been allowed to keep a security clearance due to a pattern of behavioral issues—and that the Army should assume some responsibility for not following their own regulations in those matters. Those arguments do not contradict the mitigating fact that if PFC Manning did what he is accused of, he is the most important whistle-blower since Daniel Ellsberg who released the Top Secret Pentagon Papers that helped end the Vietnam War.

Illegal pre-trial punishment at Quantico

The final two witnesses, #46 and #47, were health care professionals on staff at the Quantico Marine Brig. Military authorities justified imposing tortuous conditions upon PFC Manning for nine months by simply citing a concern for his own safety. These conditions included ritualistic forced nudity and extreme isolation. The description of #46 reads:

He will testify that during a meeting in early January of 2011, the Security Battalion Commander in charge of the Quantico Brig, —, clearly stated to the Brig Staff that “I will not have anything happen to Manning on my watch…. So, nothing is going to change… He won’t be able to hurt himself and he won’t be able to get away, and our way of making sure of that is that is he will remain on Maximum Custody and POI [Prevention of Injury] indefinitely.” He will testify that one of the other Brig psychiatrists, — then said “You know Sir, I am concerned because if you are going to do that, maybe you want to call it something else because it is not based upon anything from behavioral health.” In response, — will testify that — then said, “We will do whatever we want to do…” Others at the Brig told him that they have never seen anything like this before. — will testify that others told him that they were afraid to speak out about the situation given the concern of what would happen [to themselves] as a result of any complaint about PFC Manning’s treatment.

Witness #47 would add that:

He recalls a meeting with — where he stated that PFC Manning would remain in his current status Maximum Custody and POI unless and until he received instruction from higher authority to the contrary… he does recall that — made it clear that nothing would change with PFC Manning regardless of his behavior to the recommendations of behavioral health.

Just last week, Juan Mendez, the United Nation’s Special Rapporteur on Torture, admonished the Obama administration for continuing to stonewall his attempts to investigate the treatment of PFC Manning at Quantico.

The illegal pre-trial punishment will likely have little impact on the guilt phase of the court martial, but it’s likely to be an important mitigating factor in punishment as PFC has already been subject to extreme and unusual punishment while presumed innocent.

Government opposes all defense witnesses

Government prosecutors have already opposed every single defense witness on the list, unless the government was already intending to call them! Apparently the government has cited cost and burden. In response, Mr. Coombs explained in a December 7th memorandum to the court entitled “Witness Justification”:

The government does not seem to be interested at all in providing a thorough and impartial investigation… The government claims that it is too costly and troublesome to bring any of the defense requested witnesses. Such a position defies logic and common sense.

In conclusion, Mr. Coombs explains:

PFC Manning is charged with offenses that carry the maximum punishment of life without the possibility of parole. His charges are among the most serious charges that a soldier can face. The government must be prepared to accept the costs incurred by the seriousness of the charges that they have preferred against PFC Manning. Anything but the personal appearances of all witnesses requested by the defense and government would deny PFC Manning his right to a thorough and impartial investigation and turn this into a hollow exercise.

While the pre-trial and court martial proceedings are open to the public and media by law, the military is expected to attempt to restrict access to key and possibly large portions of the proceedings. Between opposing all defense witnesses and attempting to hide significant and critical parts of the proceedings, the government is using every opportunity to stack the deck against PFC Manning.

Public support for PFC Manning

There is no doubt that PFC Manning faces long odds for anything resembling justice and freedom anytime soon. However, due to the work of the Bradley Manning Support Network over the last 18 months, he stands a fighting chance—and that has been a huge improvement. With the help of over 6,000 individual contributors, the Support Network continues to fund all of PFC Manning’s legal expenses, as well as efforts to influence public opinion though protest, petitions, and high-profile billboards. Join us Friday, December 16th at the Fort Meade Main Gate for an all-day vigil, and Saturday, December 17th for a march and rally from noon to 3:00pm.

Jeff Paterson (photo right) is the project director of Courage to Resist, an organization dedicated to supporting US military service members who face military justice for matters of conscience, and a member of the Bradley Manning Support Network steering committee. In 1990, Marine Cpl. Paterson was the first service member to publicly refuse to fight in Iraq.